On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1109-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
We granted the State's motion for leave to appeal from an October 29, 2009 order in favor of defendant Roy W. Hermalyn, dismissing two counts of an indictment on double jeopardy and collateral estoppel grounds. See U.S. Const. amend. V; N.J. Const. Art. 1, par. 11. We remand this matter to the trial court for reconsideration and a more detailed analysis required by Yeager v. United States, 129 S.Ct. 2360, 2367 (2009).
This appeal concerns the State's attempt to retry defendant, a school official, for alleged sexual misconduct with a student, following defendant's acquittal on fourteen of sixteen counts of an indictment, and our reversal of his conviction on the first two counts of the indictment.*fn1 The record presented to us on this appeal can charitably be described as sparse. The State did not provide us with the transcripts of the first trial, and neither party's brief described for us in any detail what evidence was presented at the first trial, or even what the State alleged, beyond a skeletal outline. Our summary of the record is therefore necessarily brief.
In the first trial, the jury convicted defendant on the first two counts, charging him with official misconduct with respect to a student known as J.P., and with endangering J.P.'s welfare. However, the jury acquitted defendant on all of the next fourteen counts, each of which charged defendant with committing specific sexual acts with respect to J.P. Those sexual acts included allegedly engaging in fellatio with the student, touching the student's penis, chest, inner thigh and buttocks, touching defendant's own penis in the student's presence, and attempting to engage the student in prostitution.
We reversed the convictions on the first two counts, because a sheriff's officer had made improper comments to the jury, which at least one juror construed as meaning that the jury had to return a verdict of guilty or not guilty and was not allowed to deadlock. State v. Hermalyn, Nos. A-2700-07 and A-4003-07 (App. Div. Jan. 9, 2009) (slip op. at 21). We found that those comments "clearly had the 'capacity' to influence the final verdict." Ibid. (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).*fn2 We remanded the case for a retrial on those two counts, based solely on the issue before us on that appeal, namely the prejudicial impact of the sheriff's officer's comments. Ibid.*fn3
On remand, defendant moved to dismiss the indictment on those two counts, contending that in light of the acquittals on counts three through sixteen, a retrial would violate the Double Jeopardy Clause. The trial judge held that the State could not retry defendant on those two counts by introducing evidence of the sexual acts alleged in the counts on which the jury had acquitted defendant. Because the State admitted that it intended to rely only on the same evidence of the sexual acts it had relied on in the first trial, the judge dismissed the indictment with prejudice.
In Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 25 L.Ed. 2d 469 (1970), the United States Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment includes the bar of collateral estoppel:
"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . As a rule of federal law, . . . "it is much too late to suggest that this principle is not fully ...